Celebrity Divorce and Mediation: Winning!

Let's face it. Life as a celebrity couple can be stressful. Often, fame will take its toll on a couple, and the marriage will end. But a dissolution doesn't have to be messy, even in Hollywood.

Katy Perry and Russel Brand are getting a divorce amicably, through mediation. Vicky Gunvalson, one of the Real Housewives of Orange County, is exploring a separation from her husband Don through mediation. Camille Grammer and Kelsey Grammer are using a mediator to navigate their ongoing custody dispute. With the possible exception of the last couple, these negotiations are proceeding smoothly, and perhaps most annoyingly for US Weekly readers, without heightened animosity or drama. Perry, Brand, and Gunvalson speak of their former spouses with respect and with a sincere regard for their well-being and privacy. What a notable change from the train-wreck celebrity divorces we're all grown accustomed to watching with morbid fascination!

Even in high-profile divorces, mediation makes a collaborative, respectful marital settlement agreement possible. Imagine what it could do for couples who aren't targeted by the paparazzi?!

Flexibility as Virtue, Not Weakness

In our highly individualist society, we are taught from a young age to stand up for ourselves, to fight for what is ours, and to stand our ground. Early lessons about sharing quickly go out the window as we learn to accumulate and compete. As a result, many of us feel weak when we compromise or allow another person to "win." However, in a mediation, those who find that they can share often emerge as the most satisfied participants.

I recently mediated a case where one person held their ground, refusing to see any merit in the other person's position. While their stubborn attitude may ultimately "win," what have they actually accomplished? It's true that they have successfully alienated the person across the table, whom I feel fairly certain will feel disinclined to treat them generously in the future. In this case, that is quite tragic, as their situation requires them to have an ongoing relationship. So, while the "win" may result in short term gain, the cost to the overall relationship is unlikely to be worth this expensive stance.

How could this have gone differently? How would flexibility have allowed the parties to maintain an ongoing, trusting relationship? Perhaps both parties would have felt validated by each other, enabling us to discuss collaborative solutions that worked for both of them.

Is it possible to validate another person's position and still maintain your own? The answer is yes, of course. When one party acts generously, the other party will more often than not respond in kind. And, just in case they don't, the mediator is there to call attention to the generous act so that it does not go unnoticed. However, when one party is determined to hold their ground at all costs, generosity has no place in a mediation. Why should the other party placate, when their counterpart is unwilling to budge, nor even acknowledge the validity of their position? This is not the dynamic of a conversation, but of a cave-in.

Mediation assumes that the parties are willing to have a conversation on these terms of flexibility, collaboration, and respect. If those three tenets are absent, the conversation doesn't really have anywhere to go, except downhill.

Suspending Judgment: Respecting Client Autonomy

I recently met with a couple. They came to see me at one partner's request - Partner A desperately wanted to get out of their marriage, while Partner B was in total denial that A really wanted to leave them. Over the course of our meeting, I witnessed A's extreme distress, and B's repeated attempts to emotionally manipulate A into staying with B, despite A's stated misery.

We met for two hours, at the end of which I thought B was starting to understand A's perspective. We set a meeting time for two weeks later. The next week, I received a short email from A telling me that they were getting back together. My initial reaction was shock. It was all I could do to keep myself from calling A to ask what had changed their mind so completely, but I forced myself to sit still and respect A's stated wishes. I wrote back, wishing A the best of luck.

As a mediator, this was an extremely difficult action of restraint, and another excellent reminder that I must table my own judgments in order to better serve my clients. I met with this couple for several hours. They had a much deeper insight into their internal dynamic than I could ever have. What looked like emotional abuse to me may not have been that at all. On the other hand, it may have been exactly that.

However, I need to afford A the respect they deserve as a competent adult to make their own decisions, without my own assessment of the situation clouding any outcome. As a mediator, I'm not pushing any agenda (certainly not my own), and I can't facilitate a conversation that the parties do not want to have. I sincerely wished them the best of luck with their marriage, and I did so with a clear conscience, knowing that I did not allow my judgments to stand in their way.

Once Burned: Restoring Clients' Faith In Mediation

As a mediator, it's extremely important to me to build a trusting relationship with my clients. It's imperative that my clients know they can rely on me to honor all of my professional commitments to them. I take this responsibility very seriously. From time to time, I will hear of a mediator who does not take this tenet of the profession quite so much to heart.

Recently, I received an interesting email from a prospective client. They were angry, and had just had an extremely negative experience with another mediator who had missed appointments, deadlines, and otherwise behaved unprofessionally in countless other ways.

While these prospective clients were skeptical that mediation could ultimately serve their needs, they decided to give the process one more chance. I had the mess this other mediator created dumped in my lap, and I decided to accept the challenge. I felt strongly that it was up to me to restore my new clients' faith in mediation and mediators. I resolved to give them the best possible service, and agreed to take their case.

Slowly, after steadily proving to them that they could trust me to honor my promises and commitments to them, we built a professional relationship with a strong foundation of trust. We carefully constructed an agreement that met their needs, and discussed issues of contention until both we satisfied. When their case was successfully resolved a few weeks ago, they both let me know that the experience, while trying, had been productive and as positive as possible.

I felt so honored to be able to shift their perception of mediation from a negative to a positive experience. Earning and retaining a client's trust throughout a mediation is always my goal.

Ethical Concerns in Volunteer Mediations: One Woman's Fight Against the Exploitation of a Non-Commercial Space

Occasionally, I am honored to serve as a volunteer for Community Boards, the nonprofit organization where I did my initial 40 hour mediation training.

There are many things to love about Community Boards, but perhaps the most beloved aspect of their mediation model lies in their volunteers. They train ordinary community members to mediate neighborhood disputes, regardless of the volunteers' professional background. As a result, many San Francisco neighborhoods have benefited from Community Boards mediations, which resolve a wide range of conflicts. Through their volunteer program, I have mediated landlord tenant issues, noise disputes, family concerns, planning commission hearings, and many other types of conflict. The city uses them on a regular basis to resolve conflicts that would otherwise clog our agencies and courts.

However, when I serve as a volunteer mediator, I leave my own private practice out of the mediation room. I feel very strongly that a Community Boards mediation is not the place to engage in marketing for my own business; rather, I am there as a representative of the nonprofit, and nothing more. While I can tell you that not every mediator feels similarly, for myself this is the only ethical option. I was a mediator in a case where one of the other panelists told me he planned to give his business cards to the parties before the mediation, and that I should feel free to do the same. When I told the other panelist I found this inappropriate something unexpected happened. He thanked me for keeping him honest. Neither one of us distributed our cards. The lesson to be learned? I'm not sure that there is one, except maybe to listen to your internal moral compass. Others might appreciate your integrity, but that's really besides the point - the impetus in my decision was the parties, and their comfort level. In the end, we provided a mediation that was focussed on the issues before us, rather than our self-promotion. And that, to me, was really the point.

Self-Sabotage in the Mediation Room: And, How to Move On

Sometimes, we attribute motivations and intentions to those around us when they are simply not there. This may be our own projection of insecurity, or simply the accumulation of baggage we all lug around with us in our daily lives. Whatever the case, don't be too sure that you know where someone else is coming from. Until you actually talk about it, you really can't be sure.

However, sometimes, we do know how other people are feeling, or can predict that our actions will trigger a patterned reaction in them. And when we find ourselves in this situation, say, in a mediation, it would behoove us to avoid the hot button issue that you know will trigger an emotional reaction, right? The answer is not as predictable as common sense might dictate. Sometimes, we sacrifice progress and consensus building for the thrill of a cheap dig, and snatch at the self-destructive option. We make the comment, starting a cycle we know all too well. Why do we do this? That's probably a question that is more appropriate for a psychologist to address.

But in mediation, how do we recover from such a moment? How do we take a step back, and salvage the hard-won progress we've collaborated to build thus far? In my experience, it's important to call a cheap shot a cheap shot, but at the same time not to belittle the person who succumbed to the moment. After all, we're all human. We've all stumbled in this way before, and we will again. But it's important to recognize the mediation room as a sacred space that does not abide such behavior. We have to bring our best selves into the mediation room, and be prepared to compromise and work together.

So, OK. The person who has initiated this behavior has been called out. Now what? Both people are feeling exposed, maybe embarrassed. The mediator then has to bring everyone back to the task at hand, to continue the conversation. Maybe we acknowledge that there are many emotions in the room. An apology might be in order. But we return to the basic tenets of respect and civility that must guide the process. No one said mediation was going to be easy. But if you trust in the process, acknowledge each other's humanity, and learn to move on, you've got a fighting chance of crafting an agreement.

RecruiterEsq.com profiles Nicole Gesher, Mediator and Owner, Gesher Mediation

Recently, I was honored to be profiled by RecruiterEsq.com, a site that delves into the legal world, traditional and non-traditional career paths included. It's interesting to think about mediation in the scope of the larger legal realm, and it made me grateful to be working in a field that's so much more collaborative than litigation. It's wonderful to feel like I am really helping people to build their own solutions, in a constructive, thoughtful way.

Big thanks to Melissa for including Gesher Mediation on her very informative site!

Crafting a "Graceful End" to a Marriage

In last Thursday's New York Times "Home" section, one of the articles on the front page, "Within Arm's reach," discussed a recent divorcee's quest to remodel her tiny (600 square feet!) new apartment to maximum effect.

Now that's charming, and it's fun to see how her team of interior designers helps her to achieve a beautiful end-result, but for me the really interesting part of the article is here:

She also said that when she and her husband of some 20-odd years divorced a few years ago, they used a mediator because they were determined that their marriage would have a "graceful end."

I couldn't agree more. Often, when I'm mediating a marital settlement agreement, I want to ask the parties, "Don't you want to honor what you had?!? You married this person for a reason, right? They were there with you for how many years? Don't you want them to walk out of here with dignity and respect intact?"

Usually, the answers to those questions are yes. Most people will choose mediation when they are still able to have a conversation with the other party, when they want to end things kindly and fairly. While it's true that some folks end up in mediation because it is cheaper (and that's true), it also requires a baseline of respect and the ability to compromise and forgive. And what better way to celebrate the graceful end to your marriage then, oh I don't know, renovating your beautiful new private retreat with all the money you saved?

Constructing an Effective Agreement in Mediation

What makes an agreement effective? What can the mediator include that will help to ensure that the agreement is lasting, realistic, and appropriate? What should parties seek to include to help them implement the agreement in good faith?

While each mediation is different, a good rule of thumb to follow is to make the agreement as specific as possible, so the parties know exactly what responsibilities they have accepted, and how they are expected to act in the future. Specific means including dates, times, exact amounts, methods of exchange, potential remedies, and a host of other concerns that may seem like overkill in the mediation.

However, including these kinds of details minimizes potential confusion in the future, and also makes it difficult to disagree over the meaning of certain terms in the agreement later. For example, in a divorce mediation, it's very important to specify how much support will be paid, by whom, at what point each month (every second Tuesday, or bi-weekly?), and by what method (electronic transfer or check?). These are the sorts of points that can ruin a carefully crafted agreement, simply because the parties have no clear way to move forward.

It behooves the mediator and the parties to consider exactly how the agreement will work after the mediation is over - after all, the mediation is supposed to be a forum for the resolution of issues, not the creation of new ones. A tailored, specific agreement helps to curtail future problems by clearly addressing exactly how the agreement will be implemented, and how each party will abide by the terms of the agreement.

Mediation in highly charged crisis moments: The BP Oil Spill

Kenneth Feinberg has been tapped to oversee the administration of a $20 billion fund for claims arising from the BP oil spill in the Gulf of Mexico, as detailed in today's New York Times article:

"The fund will be administered by Kenneth R. Feinberg, the lawyer and mediator who ran the fund for victims of the Sept. 11 attacks and has emerged as a troubleshooter on issues like executive compensation and resolving claims for asbestos and Agent Orange victims....Mr. Feinberg will segue into his new role as the fund administrator, perhaps setting up shop in Louisiana, just as he is nearing the end of his stint as the government’s “pay czar” overseeing executive compensation at the nation’s biggest banks, a post created in response to public outrage at bankers’ bonuses after the financial bailouts of recent years. Besides serving as special master for the Sept. 11 Victim Compensation Fund, he helped in cases involving compensation for victims of illnesses related to asbestos and to Agent Orange chemical poisoning, among many others."

With such an environmental tragedy on our collective hands, mediation is a key aspect to healing the people who are most affected by the oil spill. It's heartening to see our government making use of an expert mediator to help rebuild and clean up the spill.

Patience as a Mediator

So often, it's tempting to want to jump in as a mediator, with a potential solution for clients. But, as a facilitative practitioner, it's sort of besides the point. Facilitative mediation allows the parties to drive the process, not the mediator. One of the reasons I feel so passionately about mediation is that, unlike a traditional legal setting (i.e. court), the clients are allowed and encouraged to build their own solution. The outcome is entirely in their hands, though the mediator can certainly offer guidance. It's a beautiful thing, really.

Staying the Course

Several times over the past few weeks, I've encountered people who are ostensibly engaged in a course of action that would seem to require a generally peaceful/positive attitude (i.e. yoga). However, while they are going through the motions they are so intent on doing everything perfectly that they lose the point of the exercise, snapping at other students, and otherwise spreading energy antithetical to that which they are supposedly seeking.

There was one interaction which the teacher quietly noticed. In response, she said to the entire class, "If you do every pose perfectly, but are mean-spirited, you are missing the point. It's so much better to smile through the difficulty, faltering, and yet always striving to do better."

I couldn't agree more. If we lose the essence of why we do what we do, then we probably shouldn't be doing it anymore.

I think this lesson translates well here, when examined through a mediation lens. Part of really listening to clients, really understanding them, comes from a deep-rooted desire to help, to heal, and to make whole. That energy can really only come from a place of sincerity.